Citation Nr: 1403085
Decision Date: 01/24/14 Archive Date: 01/31/14
DOCKET NO. 08-12 587 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky
THE ISSUES
1. Entitlement to service connection for left ear hearing loss.
2. Entitlement to an increased rating for bilateral hearing loss disability.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Espinoza, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1979 to April 1979.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. During the pendency of this appeal, in a May 2012 rating decision, the Appeals Management Center (AMC) granted service connection for hearing loss in the right ear. Therefore, entitlement to service connection for hearing loss in the right ear is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).
Additionally, the Board notes that the evidence of record indicates multiple spellings of the Veteran's name. The majority of the spelling variations that could be matched with identifiers confirming the name variations as the appellant have been listed above; however, other spelling variations exist within the claims file
In March 1979 and October 1979 the Veteran filed a claim for bilateral hearing loss, among other claims. In a January 1980 administrative decision letter, VA notified the Veteran that her character of discharge determination was unfavorable, thus she did not qualify for any benefit sought. The Veteran's DD-214 indicates that her discharge was upgraded to under honorable conditions in July 1981. In March 2007, the Veteran filed a claim for bilateral hearing loss, which forms the basis for the present appeal. As a result, the Board finds that treating the March 2007 claim for service connection for bilateral hearing loss as an original claim was appropriate. See 38 C.F.R. § 3.21(e) (2013).
In a March 2009 VA Form 9, the Veteran requested a hearing before a member of the Board. However, in a November 2009 statement, the Veteran withdrew her hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. 38 C.F.R. § 20.704(e) (2013).
The case was most recently before the Board in November 2011. At that time, the Board denied entitlement to service connection for a pulmonary disability and for residuals of thyroid cancer and remanded the claim of entitlement to service connection for bilateral hearing loss to the agency of original jurisdiction (AOJ) for additional development and consideration. The November 2011 Board remand directed the Veteran to be afforded a VA examination for hearing loss. The Veteran was provided a VA audiological examination in January 2012. Accordingly, the Board finds that there has been substantial compliance with the directives of the November 2011 remand, such that an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998).
In August 2013, the Veteran's representative submitted October 2012 medical records and a May 2012 audiology report and waived RO review of the new evidence. See 38 C.F.R. § 20.1304(c) (2013). The Veteran had previously submitted the same May 2012 audiology report but also submitted an additional May 2012 audiology report but she did not waive review of this evidence. Additionally, a June 2013 rating decision, which denied entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities, referenced review of additional evidence. This additional evidence, referenced in the June 2012 rating decision, included additional VA treatment records, Social Security Administration records as well as other evidence, which were not considered by the RO. However, given the favorable outcome in the decision below, a remand is not necessary for the issuance of a supplemental statement of the case for entitlement to service connection for left ear hearing loss.
Finally, a review of the Veterans Benefits Management System (VBMS), an electronic claims processing system, shows the Veteran filed claims for aid and attendance, and involving a heart condition and diabetes. The record before the Board does not further identify these claims nor does it reflect that these claims have been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action.
The issue of entitlement to an increased rating for bilateral hearing loss disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
The Veteran's left ear hearing loss is as likely as not attributable to her active service.
CONCLUSION OF LAW
The criteria for service connection for left ear hearing loss are met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). In this decision, the Board grants service connection for left ear hearing loss. This represents a complete grant of this claim. Thus, any deficiency in VA's compliance with VCAA as to this issue is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.
Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In service connection claims consideration must be given to all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a).
In addition, certain chronic diseases, such as sensorineural hearing loss, as an organic disease of the nervous system, may be presumed to have been incurred in, or aggravated by, service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).
For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2013).
The Veteran's service treatment records (STRs) show deterioration of her hearing with respect to her left ear while on active duty. Specifically, during August 1978 and October 1978 pre-entrance audiological examinations, the Veteran's pure tone decibel thresholds, for the left ear, were not above 20 decibels at the relevant frequencies of 500, 1000, 2000, 3000 and 4000 Hertz in either examination. Thus, these pre-entrance audiological examinations did not show hearing impairment, as the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. See Hensely v. Brown, 5 Vet. App. 157 (1993). However at the Veteran's February 1979 separation examination, audiometric testing results for the left ear revealed decibel thresholds of 40 decibels at the relevant frequencies of 500 and 1000 Hertz, and 45 decibels at relevant frequencies of 2000 and 4000 Hertz, which is reflective of hearing loss disability for VA purposes. 38 C.F.R. § 3.385.
As noted above, the Veteran was afforded a VA audiological examination in January 2012, during which she reported the onset of her hearing difficulty occurred gradually while she was in the military as she was exposed to high levels of noise as a result of her military duty. However, January 2012 VA audiometric testing revealed that while the Veteran had hearing loss disability in the right ear for VA purposes, the same was not true for the left ear. See 38 C.F.R. § 3.385. The January 2012 VA examiner opined that the Veteran's right ear hearing loss was likely the result of the Veteran's military duty based upon the Veteran's statement regarding the onset of her hearing loss and the fact that she exhibited significantly worsened hearing while in the military.
While the January 2012 VA examination did not show a left ear hearing loss disability for VA purposes, the Veteran subsequently submitted private audiological examination reports that do show left ear hearing loss disability for VA purposes under 38 C.F.R. § 3.385. Specifically, a May 2012 audiological report from Better Hearing Centers shows a decibel threshold, for the left ear, of 35 decibels at the relevant frequencies of 500, 2000, 3000 and 4000 Hertz, and of 30 decibels at 1000 Hertz. Additionally, a subsequent May 2012 audiological examination from Western Kentucky Hearing & Audiology Services shows even greater hearing impairment with respect to the left ear, with decibel thresholds above 40 decibels at the relevant frequencies of 500, 1000, and 2000 Hertz. These May 2012 private audiological examinations show hearing disability in the left ear for VA purposes under 38 C.F.R. § 3.385. Thus, the Veteran satisfies the existence of the present disability standard for her left ear hearing loss claim.
The Veteran is competent to testify as to observable symptoms such as hearing difficulty, as this is a symptom that is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994).
The Board finds the Veteran's statement, during the January 2012 VA examination, as to onset of the symptoms of her hearing difficulty during active service, to be credible and is accorded significant evidentiary weight. Such statements are consistent with the demonstration of left ear hearing loss in service as evidenced by the findings on examination for separation from service. Further, VA conceded the Veteran's exposure to acoustic trauma in service in awarding service connection for right ear hearing loss disability in the May 2012 rating decision.
Thus, at the least, this evidence raises a reasonable doubt as to whether the Veteran's current left ear hearing loss had its onset in service, and is etiologically related to noise exposure in service. When resolving doubt in the Veteran's favor, the Board finds that Veteran's left ear hearing loss is in fact related to service. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). Thus, the Board concludes that service connection for left ear hearing loss is warranted.
ORDER
Entitlement to service connection for hearing loss, in the left ear, is granted.
REMAND
The May 2012 rating decision granted service connection for right ear hearing loss and assigned a noncompensable initial evaluation, effective from March 28, 2007. A notice of disagreement (NOD) was received in July 2013 as to the noncompensable initial rating assigned for the service-connected right ear hearing loss. A June 2013 rating decision noted that the Veteran's hearing loss claim was on appeal and would be addressed by a separate notification from the appeals team. In the decision above, the Board has granted additional service connection for left ear hearing loss disability. The Board notes that in circumstances where a NOD is filed, but a Statement of the Case (SOC) has not been issued, the Board must remand the claim to the RO to direct that an SOC be issued. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, in the circumstances presented in this case, the RO must issue an SOC on the issue of entitlement to an increased rating for bilateral hearing loss disability.
Accordingly, the case is REMANDED for the following action:
Issue a SOC as to the issue of entitlement to an increased rating for service-connected bilateral hearing loss disability, based on the May 2012 rating decision, July 2013 NOD, and the Board's grant of service connection for left ear hearing loss disability, and afford the appropriate period for response. The Veteran must be advised of the time limit in which she may file a substantive appeal. See 38 C.F.R. § 20.302(b) (2013). Only if the Veteran completes an appeal with respect to this issue, by the timely filing of a substantive appeal, should such be certified to the Board for appellate consideration.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs